The two Article 50 legal claims – the current details

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8th July 2016

There are a couple of legal claims in the news about Article 50. (On Article 50 see my post here.)

The Mishcon de Reya claim

One is connected to the law firm Mishcon de Reya.  The potential litigants have not been disclosed.

This potential claim has been widely reported in the media.  The press release is here.  I made a some comments on this claim at this post.

I understand that this claim is still at pre-action correspondence stage. There has been no claim form or letter before action.

The Dos Santos claim

The other claim is in the name of Dier Dos Santos, a UK citizen.

This claim is at a later stage, and today it was reported that there will be a hearing on 19 July 2016.  I understand that this will be a permission hearing, rather than a substantive hearing.

So far I can establish the following about the claim.

The claim is by means of an application for judicial review.

The claim was issued on 28 June 2016 and served the same day.

It was issued at the High Court in London.

The remedies sought seem to be (a) a declaration and permanent injunction and (b) an interim injunction.

The respondent was originally stated to be HM government, but I understand it now in the name of the Chancellor of Duchy of Lancaster (the somewhat daft formal title of the Cabinet Office minister Oliver Letwin).  In effect, however, the respondent will be the Crown.

The declaration sought is that a “decision” for the purposes of Article 50(1) has to be a decision taken by parliament, and not under the royal prerogative.

(A declaration is a discretionary remedy of the court which “declared” the correct legal position where there is a dispute.  It is a remedy sometimes used when there is no dispute of fact, only a genuine and important dispute as to the meaning of a legal instrument such as a statutory or a contractual provision.  The court can the “declare” what the provision really means – but only if it wants to. As a discretionary remedy, no person has the right to such a remedy.)

I believe the permanent injunction sought is so as to restrain the UK government from taking (or purporting to take) such a decision under the royal prerogative and/or making the notification under Article 50(2).

The interim injunction sought is to have an order in place stopping the UK government taking (or purporting to take) a decision under the royal prerogative and/or making the notification under Article 50(2) until the High Court has dealt with the case.

The reason why the injunctions are required is that once the notification is received by the EU Council, the horse, the genii, and the cat are all out of their respective receptacles, and it passes from being a domestic matter and becomes an EU matter.  When the notification is received by the Council then there would be little that a domestic court can do.

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9 thoughts on “The two Article 50 legal claims – the current details”

  1. Dear Jack

    I am particularly concerned by your report about the horse, the genii and the cat.

    The horse is clearly one ridden by a certain apocalyptic rider. According to some accounts there are three more on the loose. That’s four stables with unbolted doors. What is it with modern liveries – don’t they abide by the relevant EU regulations on the care of animals?

    The genii (if you are referring to the one in the lamp) is obviously an allusion to the remnants of the Ottoman Empire. I recall there was also one in a ring who might have been from the Far East. Either way, between them they conjured up a flying carpet – which would play havoc with our border controls. The Home Secretary should be informed.

    Some reports indicate the cat is not only out of its bag but already playing havoc amongst the pigeons. If that’s the case the RSBP should be informed. Other reports suggest the cat might belong to one Erwin Schrodinger who is keen to know if it alive or dead.

    If the cat is dead there are various ‘experts’ ready to advise on the best way to skin it (assuming it has used up all its nine lives). Presumably someone in the EU will use the sinews* to string a small violin for Juncker to play as the SS Great Britain slowly sinks beneath the waves.

    Meanwhile the rats can leave the ship and run amok because the cat is dead. Worrying times indeed.

    *Yes I know that catgut is normally made from horse guts – but the horse is alive and well and being ridden like crazy, do pay attention.

    1. Schrödinger’s cat is so passe. It’s been replaced by Schrödinger’s immigrants, remarkable people who lounge around on sofas watching TV and scrounging all the benefits they can, while simultaneously also working so hard as to destroy all jobs for proper Brits.

  2. Surely an injunction is unnecessary. If it was to be declared that article 50 couldn’t be invoked without an act of parliament, then any attempt to do so without such would simply not be recognised by the EU, as it would have been found not to be consistent with the UK’s constitutional arrangements (as the article requires it must be).

    Having said all that, I’m sure that the next PM will want some form specific Parliamentary enabling act for such an action for which I doubt there will be a problem getting a majority.

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